294472 tst cob - weblogs at harvard
TRANSCRIPT
19-2420-cv
United States Court of Appeals for the
Second Circuit
THE ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC.,
Plaintiff-Counter-Defendant-Appellee,
– v. –
LYNN GOLDSMITH and LYNN GOLDSMITH, LTD.,
Defendants-Counter-Claimants-Appellants.
–––––––––––––––––––––––––––––– ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
BRIEF FOR AMICI CURIAE LATIPA (NÉE MICHELLE DIZON) AND VIỆT LÊ, IN SUPPORT OF APPELLEE THE
ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC.
JASON SCHULTZ
CHRISTOPHER MORTEN NYU TECHNOLOGY LAW AND POLICY CLINIC
NYU SCHOOL OF LAW 245 Sullivan Street, 5th Floor New York, New York 10012 (212) 998-6430 Attorneys for Amici Curiae
Latipa (née Michelle Dizon) and Việt Lê
Case 19-2420, Document 161, 03/03/2020, 2791520, Page1 of 71
CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, amici
curiae each state that they are individuals.
Dated: February 28, 2020 By: /s/ _Jason M. Schultz_____
JASON M. SCHULTZ [email protected] Counsel for Amici Curiae Latipa
(née Michelle Dizon) and Việt Lê
Case 19-2420, Document 161, 03/03/2020, 2791520, Page2 of 71
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ............................................................................................. ii
STATEMENT OF INTEREST ........................................................................................... 1
SUMMARY OF ARGUMENT .......................................................................................... 3
ARGUMENT ................................................................................................................ 7
I. Reuse of Archival Materials to Comment On or Criticize Works Via Critique Is a Purpose that Favors Fair Use. ...................................................... 7
A. Critique is a well-established form of creativity, comment, and criticism within contemporary art, politics, and public debate. ............... 7
B. Critique is a specific form of criticism and comment under Section 107 of the Copyright Act. ....................................................................... 13
i) “Criticism” and “Comment” are broad concepts within Section 107 that include a wide range of discursive practices. ...... 13
ii) The plain meaning of “criticism” and “comment” include a broad range of critical practices, including critique. ...................... 15
C. Critique can create new information, understanding, insight, and meaning that weigh in favor of fair use. ................................................. 16
II. Reuse of Archival Materials to Comment On or Criticize Works Via Recontextualization Is a Purpose that Favors Fair Use. ................................. 20
A. Engaging in archival reuse for the purpose of recontextualization favors fair use. ......................................................................................... 20
B. Recontextualization can generate new information, understanding, insight, and meaning that weigh in favor of fair use. ............................. 29
CONCLUSION ............................................................................................................ 32
Case 19-2420, Document 161, 03/03/2020, 2791520, Page3 of 71
ii
TABLE OF AUTHORITIES
CASES
A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630 (4th Cir. 2009) ............ 17
Andy Warhol Foundation for the Visual Arts v. Goldsmith (AWF), 382 F. Supp. 3d 312 (S.D.N.Y. 2019). ................................................ 5, 11, 19, 28
Authors Guild v. Google, Inc, 804 F.3d 202 (2d Cir. 2015) .................................... 16
Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006). ...................................................................................................... 29
Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006). ....................................................... 30
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). ............................. passim
Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013) ................................................ passim
Eldred v. Ashcroft, 537 U.S. 186 (2003) ................................................................. 12
Hughes v. Benjamin, No. 17-cv-6493 (RJS), 2020 WL 528704 (S.D.N.Y. Feb. 3, 2020) ........................................................................................................ 30
Maxtone-Graham v. Burtchaell, 803 F.2d 1253 (2d Cir. 1986) .............................. 17
Perez v. Loren Cook Co., 803 F.3d 935 (8th Cir. 2015) .......................................... 16
Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001) .. 13, 14, 18
Swatch Group Management Services Ltd. v. Bloomberg L.P., 756 F.3d 73 (2d Cir. 2014) ................................................................................... 17
TCA Television Corp. v. McCollum, 839 F.3d 168 (2d Cir. 2016) .......................... 18
Case 19-2420, Document 161, 03/03/2020, 2791520, Page4 of 71
iii
STATUTES
17 U.S.C. § 107 ................................................................................................ passim
U.S. Const. Amend. I ............................................................................................... 12
OTHER AUTHORITIES
Amy Adler, Fair Use and the Future of Art, 91 N.Y.U. L. Rev. 559 (2016) ......... 20
Appropriation (David Evans ed., 2009) ................................................................... 20
Cat Lachowskyj, Book Review: White Gaze, Lens Culture, https://www.lensculture.com/articles/michelle-dizon-vi-t-le-white-gaze. .......... 11
Criticism, Oxford English Dictionary (Feb. 17, 2020) https://www.oed.com/view/Entry/44598?redirectedFrom=criticism#eid ........... 15
Critique, Fowler, A Dictionary of Modern English Usage (3d ed. 1965) ............... 15
Critique, Webster’s New Collegiate Dictionary (5th ed. 1977) .............................. 15
Daniel C. Blight, Michelle Dizon & Việt Lê: White Gaze, 1000 Words, http://www.1000wordsmag.com/michelle-dizon-viet-le .............................. 27, 31
Declaration of Neil Printz ..................................................................... 12, 19, 27, 28
Declaration of Toni Morrison, Suntrust, 136 F. Supp. 2d 1357 (N.D. Ga. 2001).............................................................................................................. 14, 15
Ernesto Laclau & Chantal Mouffe, Post-Marxism Without Apologies, in Cultural Theory and Popular Culture 159 (John Storey ed., 3d ed. 2006) ........... 7
Gayatri Spivak, “Can the Subaltern Speak?,” Marxism and the Interpretation of Culture, 25 (Cary Nelson and Lawrence Grossberg, eds. 1988). ...................... 9
Immanuel Kant, Critique of Pure Reason (Paul Guyer ed., 2000) .......................... 15
Case 19-2420, Document 161, 03/03/2020, 2791520, Page5 of 71
iv
Judith Butler, What is Critique? An Essay on Foucault’s Virtue, in The Political: Readings in Continental Philosophy, 212 (David Ingram ed., 2002). ..................................................................................................................... 7
Khairani Barokka, Two Artists Interrogate the “White Gaze” of National Geographic, Aperture (July 10, 2019), https://aperture.org/blog/michelle-dizon-viet-le-white-gaze ................................................................................ 11-12
Michel Foucault, Discipline & Punish: The Birth of the Prison ............................. 27
Michel Foucault, What is Critique?, The Politics of Truth, in The Politics of Truth 41 (Sylvère Lotringer ed., 2007); .......................................................... 7, 16
Michelle Dizon & Việt Lê, Worlds, Words—The Afterlife of Images, in White Gaze (2018) ........................................................................................ 22, 23
Michelle Dizon & Việt Lê: White Gaze, Sming Sming Books, https://www.smingsming.com/products/michelle-dizon-việt-le-white-gaze/ ............................................................................................................. passim
Michelle Dizon, The Sediment of Whiteness, in White Gaze (2018) ............... passim
Theodor Adorno, Perennial Fashion—Jazz, in Prisms (Samuel Weber & Shierry Weber trans., MIT Press 1981). ................................................................ 8
Case 19-2420, Document 161, 03/03/2020, 2791520, Page6 of 71
1
STATEMENT OF INTEREST1
Amicus Latipa (née Michelle Dizon) is an artist, writer, filmmaker, and
Associate Professor of Media and Cultural Studies at the University of California,
Riverside. The violence of imperialism and the intimate spaces of resistance within
globalization form central pivots in her works, which take the form of multi-
channel video installations, expanded cinema performances, essay films,
photographs, discursive events, pedagogical platforms, and writing. She has
exhibited and lectured internationally across Croatia, Spain, Denmark, France,
Sweden, the Philippines, Indonesia, Hong Kong, and the United States. She has
also taught courses on documentary, visuality, postcoloniality, globalization, war,
feminism, and ecology at the California Institute of the Arts and served as co-chair
and core faculty in the Visual Art program at the Vermont College of Fine Arts.
She earned an M.F.A. in Art with a specialization in Interdisciplinary Studio at the
University of California, Los Angeles, and a Ph.D. in Rhetoric with designated
1 All parties consented to the filing of this brief. No party’s counsel authored this brief in whole or in part, and no party or its counsel contributed money that was intended to fund preparing or submitting this brief. Nor did any other person (besides Amicus Latipa [née Michelle Dizon], Amicus Việt Lê, or their counsel) contribute money that was intended to fund preparing or submitting this brief.
Case 19-2420, Document 161, 03/03/2020, 2791520, Page7 of 71
2
emphases in Film and Women, Gender, and Sexuality from the University of
California, Berkeley.
Amicus Việt Lê is an artist, writer, and curator, and an Associate Professor
in Visual Studies at California College of the Arts. He has been published in
positions: asia critique; Crab Orchard Review; American Quarterly; Amerasia
Journal; Art Journal; and the anthologies Writing from the Perfume River; Strange
Cargo; The Spaces Between Us; Modern and Contemporary Southeast Asian Art;
among others. He has presented his work internationally across Canada, the United
States, Korea, Japan, Việt Nam, Hong Kong, Thailand, Italy, China, Brazil, among
other venues. He received his M.F.A. from the University of California, Irvine,
where he has also taught Studio Art and Visual Culture courses, and his M.A. and
Ph.D. from the University of Southern California (Department of American
Studies & Ethnicity). In Taipei, he was a postdoctoral fellow at Academia Sinica.
Together, Amici are the creators of White Gaze,2 a book that uses archival
National Geographic (NG) pages as raw material to create “new information, new
aesthetics, new insights and understandings,” Cariou v. Prince, 714 F.3d 694, 706
(2d Cir. 2013), as part of an exploration of the “white gaze.” White Gaze seeks to
expand societal discourse surrounding the ownership and appropriation of archival
2 For the court’s reference, Amici have submitted a portion of White Gaze with this brief, which begins at page 33 below.
Case 19-2420, Document 161, 03/03/2020, 2791520, Page8 of 71
3
images, especially those created within colonialist and imperialist contexts, such as
those found throughout National Geographic’s history and legacy. As such, Amici
have personal and professional interests in ensuring that fair use continues to allow
works like White Gaze to be made—works that critically examine, among other
things, how past colonial perspectives continue to live in and affect our present
society, and that reuse archival works for the purposes of criticism and comment in
new social and historical contexts. This case presents important questions on the
application of fair use when secondary users reuse archival works. Amici
respectfully request that when contemplating these questions, the Court consider
the contributions Amici and those similarly situated make to social and political
discourse through such reuse.
SUMMARY OF ARGUMENT
Amici ask this Court to affirm the district court’s holding that Andy
Warhol’s creative use of Lynn Goldsmith’s photograph of Prince as “raw material”
provided the public with “new information, new aesthetics, new insights and
understandings” and was thus “the very type of activity that the fair use doctrine
intends to protect for the enrichment of society.” Cariou, 714 F.3d at 706. Many
creative activities enrich society, including those falling within the broad
categories of comment and criticism set forth in the preamble of Section 107 of the
Case 19-2420, Document 161, 03/03/2020, 2791520, Page9 of 71
4
Copyright Act. These include traditional activities, such as a book review or
parody, but they also include discursive techniques such as critique and
recontextualization of archival works. Amici use the latter techniques in their art,
scholarship, and social and political interventions. We therefore write to provide
the Court with information and examples concerning the broad range of creative
practices affected by, and deserving the protection of, the fair use doctrine.
The Copyright Act does not define terms in the preamble of Section 107
such as “comment” or “criticism”; instead, they must be construed as illustrative
rather than restrictive. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577-78
(1994). In their own work, Amici use a specific form of commentary and criticism
well understood among literary and artistic scholars and artists called “critique,”
which refers to the process of examining a work and highlighting an element that
might be absent from prevailing social discourse about that work. This is distinct
from common forms of “criticism” that specifically praise or deride the content of
the work, such as in mainstream book, music, or movie reviews. In revealing to the
observer a novel perspective on the original work, secondary uses for the purpose
of critique provide the public with forms of new information, insight,
understanding, and meaning, using existing works as “raw material” for such
comment and thereby further the goals of fair use. This is fully consistent with
Case 19-2420, Document 161, 03/03/2020, 2791520, Page10 of 71
5
Campbell, id. at 579 (a work is transformative if it adds “new expression, meaning,
or message”), as well as this Court’s holding in Cariou, 714 F.3d at 705.
Amici Latipa and Lê’s work, White Gaze, is an example of such critique: it
reveals to the observer the “white gaze” that pervades each aspect of our society
through reuse of archival National Geographic (NG) pages, removing specific text
from those pages and reforming some of the text as accompanying poetry. It does
this in order to invite thought and dialog that examines the legacies of imperialist
visuality and how they continue into the present.
The case at hand provides another example of critique. The district court
correctly found fair use, in part, because Warhol’s aesthetic interventions in the
form of progressive alterations of media, cropping, and serial additions of garish
color transformed the musician Prince from the “vulnerable human being” in
Goldsmith’s photo “to an iconic, larger-than-life figure.” Andy Warhol Found. for
the Visual Arts v. Goldsmith (AWF), 382 F. Supp. 3d 312, 326 (S.D.N.Y. 2019).
But Warhol’s 16-painting Prince Series is also protected as fair use in the form of
“critique,” as it lays bare the artificiality of “celebrity” and societal reverence for
its manufactured icons that contrast and are in tension with Prince’s uncomfortable
private life, messages and meaning that were not elements of Goldsmith’s
photograph. These types of commentary and criticism must not be undervalued or
Case 19-2420, Document 161, 03/03/2020, 2791520, Page11 of 71
6
excluded from fair use, especially as methods of creating new information,
aesthetics, insights, or understandings from the raw materials of archives.
Amici also wish to draw the court’s attention to how artworks may merit
protection as fair use in a second manner, through discursive recontextualization.
Recontextualization can include adding to the social and historical context of the
work, altering the work’s reception by its audience, and helping to understand the
work’s meaning. In this manner, recontextualization both adds to and changes or
transforms the original work’s meaning. In White Gaze, Amici recontextualize
National Geographic pages from their original discursive context—published for a
primarily white audience and often accompanied by racist language—and view
these images and text from a different perspective—a decolonial world view that
lays bare the assumptions of the original.
Amici raise these points to highlight their importance when weighing the
first factor of fair use in cases of archival reuse. Contrary to Goldsmith and her
amici’s suggestion, such forms of commentary and criticism are not exclusive to
artists such as Warhol but are broadly and generally taught and practiced by artists
and scholars such as Amici. They are an essential aspect of modern cultural
discourse and contemporary art. The approach we outline is consistent with
governing Supreme Court and Second Circuit precedent and ensures that the fair
Case 19-2420, Document 161, 03/03/2020, 2791520, Page12 of 71
7
use doctrine continues to promote creativity in the social and political contributions
of artists, authors, and academics like Amici.
ARGUMENT
I. Reuse of Archival Materials to Comment On or Criticize Works Via Critique Is a Purpose that Favors Fair Use. A. Critique is a well-established form of creativity, comment, and
criticism within contemporary art, politics, and public debate.
Critique is a form of criticism and comment that highlights an element of a
work that is absent from existing social or political discourse, offering it up for
examination. See, e.g., Michel Foucault, What is Critique?, The Politics of Truth,
in The Politics of Truth 41 (Sylvère Lotringer ed., 2007); see also Judith Butler,
What is Critique? An Essay on Foucault’s Virtue, in The Political: Readings in
Continental Philosophy, 212 (David Ingram ed., 2002). For Amici, other artists,
and critical theorists, discourse refers to the mechanisms by which meaning is
socially constructed through interactions between people and objects, against the
background of a set of socially agreed-upon norms, practices, and concepts. See
Ernesto Laclau & Chantal Mouffe, Post-Marxism Without Apologies, in Cultural
Theory and Popular Culture 159 (John Storey ed., 3d ed. 2006) (“If I kick a
spherical object in the street or if I kick a ball in a football match, the physical fact
is the same, but its meaning is different. The object is a football only to the extent
Case 19-2420, Document 161, 03/03/2020, 2791520, Page13 of 71
8
that it establishes a system of relations with other objects, and these relations are
. . . socially constructed. This systematic set of relations is what we call
discourse.”). In general, critique involves the practice of examining discourse—
that is, the set of relations between the object of critique and its social world—to
see what is missing and to add what is missing back to the discourse. See, e.g.,
Theodor Adorno, Perennial Fashion—Jazz, in Prisms (Samuel Weber & Shierry
Weber trans., MIT Press 1981).3 This is in contrast to common forms of comment
or criticism which typically discuss, praise, or deride a subject, such as the kind of
criticism one would read in a negative book review. Instead, critique intervenes in
discourse by adding information, understanding, insight or meaning into the gap of
what is missing from either the work itself or from previous or current social
discourses about the work.
White Gaze is a form of critique squarely within this practice. In Amicus
Latipa’s introductory essay to White Gaze, she notes that part of the discourse
surrounding National Geographic, its photos, and its pages has been the historic
3 For example, Adorno conducts a critique of jazz by illuminating its discourse—the ways in which jazz developed from a music of African-American resistance to a popular social phenomenon among white Europeans—in order to provide new insights and commentary on how capitalism can transform phenomena that pose a threat to it into commodities that ultimately fuel it.
Case 19-2420, Document 161, 03/03/2020, 2791520, Page14 of 71
9
and present legacy of colonialism, racism, and the oppressive effects of the white
gaze:
[NG Editor-in-Chief Susan] Goldberg writes about . . . a photo from [a] 1916 [NG issue] with two aboriginal people captioned “South Australian Blackfellows: These savages rank lowest in intelligence of all human beings.” [Goldberg] contrasts such an image with a 2015 story about Haiti where Haitians between the ages of 14 and 30 were given cameras to “document the reality of their world,” . . . [with Goldberg commenting that] these “young Haitians” . . . represent a form of subaltern4 empowerment: the capacity for the youth to represent themselves.
Michelle Dizon, The Sediment of Whiteness, in White Gaze (2018). Yet, she
argues, Goldberg’s discussion of the white gaze is incomplete, limited to the sense
in which the white gaze of a white person oppresses or subjugates a non-white
person:
[The images] reveal that, in fact, the “young Haitians” are not necessarily “documenting the reality of their world,” even if their eyes are behind the lens. In fact, they might be making and performing a world to satisfy the white gaze. . . . The white gaze has appeared in our lives as [a] kind of insistent, omnipresent demand to address ourselves to and to become legible for the white world. Its most insidious operation is that it becomes installed in our psyches as desire itself—a desire for whiteness that unconsciously drives the terms of one’s life, who one loves, where one lives, what one wants to be, what one lives for, and what one thinks it is possible to do. At a certain point, one
4 Critical theorists differ about the meaning of “subaltern,” but Gayatri Spivak offers a fairly uncontroversial definition: the subaltern is a social group defined in opposition to the elite. See Gayatri Spivak, “Can the Subaltern Speak?,” Marxism and the Interpretation of Culture, 25 (Cary Nelson and Lawrence Grossberg, eds. 1988).
Case 19-2420, Document 161, 03/03/2020, 2791520, Page15 of 71
10
realizes that one is not only a victim, but an agent in this madness—not only had I been erased, but in fact, I had done the erasing.
Id. By reusing archival NG pages as raw material to bring new information,
understanding, insight, and meaning to its audience, White Gaze reveals to the
observer the broader complexity of the “white gaze”5 concept that Goldberg’s
discussion misses or avoids—how the white gaze confronts all people in a
contemporary world, white or not, and in myriad forms. Id. (“The geographies of
whiteness not only divide the world with walls, treaties, laws, guns, but also
become mapped in our psyches—as power and privilege, mobility and property,
accumulation and knowledge—all of the ways in which whiteness means so much
more than the color of one’s skin.”). By revealing this complexity to the observer,
which exists within NG’s pages but has been absent from the dominant discourse
surrounding it, the purpose of White Gaze is fundamentally that of critique and of
transforming this discourse.6
5 Numerous others have also used critique to reveal the white gaze, including Toni Morrison, WEB Du Bois, Ta-Nehisi Coates, and James Baldwin. See https://www.theguardian.com/commentisfree/2015/dec/31/black-writers-courageously-staring-down-the-white-gaze-this-is-why-we-all-must-read-them. 6 Reviews of White Gaze confirm this purpose. See, e.g., Khairani Barokka, Two Artists Interrogate the “White Gaze” of National Geographic, Aperture (July 10,
Case 19-2420, Document 161, 03/03/2020, 2791520, Page16 of 71
11
In considering the purpose of Warhol’s reuse of Goldsmith’s black and
white photograph in creating his Prince Series, the district court’s opinion correctly
followed this Court’s decision in Cariou and focused on how his alterations of the
photo through various artistic and media changes “g[a]ve Goldsmith’s photograph
a new expression . . . [and] aesthetics with creative and communicative results
distinct from Goldsmith’s” both because (1) Warhol transformed Prince “from a
vulnerable, uncomfortable person to an iconic, larger-than-life figure” and (2)
“each Prince Series work is immediately recognizable as a ‘Warhol’ rather than as
a photograph of Prince.” AWF, 382 F. Supp. 3d at 326 (quotation marks and
alterations omitted). Rendering Prince as a larger-than-life figure versus presenting
his vulnerability (as in Goldsmith’s photograph) was thus a sufficient basis for the
district court’s finding of fair use.
But Warhol’s transformation of the photograph was also fair use in an
additional way through Warhol’s engaging in a critique of Prince’s path to
celebrity. As Goldsmith herself attests, her photo highlights how Prince is “not a
comfortable person” and a “vulnerable human being.” Id. at 318. Yet in Warhol’s
2019), https://aperture.org/blog/michelle-dizon-viet-le-white-gaze (describing White Gaze as a “razor-sharp critique of colonialism”); see also Cat Lachowskyj, Book Review: White Gaze, Lens Culture, https://www.lensculture.com/articles/michelle-dizon-vi-t-le-white-gaze (last visited Dec. 2, 2019) (describing White Gaze as “critique”).
Case 19-2420, Document 161, 03/03/2020, 2791520, Page17 of 71
12
work one sees him revealing the “disparity between the public image and the
private person” as part of the discourse surrounding Prince. See Declaration of Neil
Printz, JA-1337. Warhol even remarked in his diary on the contrast between Prince
at a party “all by himself” and the performance of his charismatic public
personality, revealing to the observer how Prince, in his public life, was “weird and
always with [his] bodyguards.” Id. By selecting Goldsmith’s vulnerable image as
the source material for highlighting this discourse and then emphasizing Prince’s
“intense gaze ringed by dark shadows” through addition of “lurid colors, and
optical effects,” Warhol revealed something others may have missed: how “weird”
Prince’s public image appears compared to his private personality. Id. Warhol’s
bringing this to light thus generated new information, understanding, and insight
into Prince as well as celebrity in general and thus independently provided new
meaning to the imagery. Such generation and expression of new meaning embody
the First Amendment values protected by the Copyright Act’s fair use provisions
and must be protected by those provisions. See Eldred v. Ashcroft, 537 U.S. 186,
190 (2003) (fair use “affords considerable latitude for scholarship and comment”
as a “traditional First Amendment safeguard[]”).
Case 19-2420, Document 161, 03/03/2020, 2791520, Page18 of 71
13
B. Critique is a specific form of criticism and comment under Section 107 of the Copyright Act.
i) “Criticism” and “Comment” are broad concepts within Section 107 that include a wide range of discursive practices.
The Copyright Act explicitly states that “the fair use of a copyrighted work
. . . for purposes such as criticism, comment, . . . is not an infringement of
copyright.” 17 U.S.C. § 107 (emphasis added). Based on this statutory text, courts
often find secondary uses identifiable as “criticism” or “comment” to have a
purpose that favors fair use. See, e.g., Campbell, 510 U.S. at 579 (finding fair use,
in part, because 2 Live Crew’s “Pretty Woman” was critical of Roy Orbison’s “Oh,
Pretty Woman”). As the Supreme Court has noted, “comment” and “criticism”
have broad meanings that can encompass many types of discourses that favor fair
use. See id. at 577 (construing Section 107’s preambulatory purposes, including
“criticism” and “comment,” as “illustrative and not limitative”).
The Supreme Court’s Campbell decision supports critique as a form of
criticism or comment. Though it identifies and applies the category of criticism
known as “parody” to find 2 Live Crew’s hip hop song “Pretty Woman”
transformative, the opinion does not reduce the broader terrain of criticism in any
manner. See id. at 579-82 (understanding parody as one form of criticism involving
use of a copyrighted work to ridicule that work). Similarly, the Eleventh Circuit in
Suntrust Bank v. Houghton Mifflin Co. protected a work of parody as “criticism,”
Case 19-2420, Document 161, 03/03/2020, 2791520, Page19 of 71
14
but explicitly left the meaning of “criticism” open to include other forms. 268 F.3d
1257, 1271 (11th Cir. 2001) (holding defendant’s novel The Wind Done Gone
(TWDG)—a “reimagining” of Gone with the Wind (GWTW) told from the
perspective of slaves—to be a fair use of GWTW). Though this application of
“criticism” as parody satisfied the court that TWDG’s purpose and character were
fair, the opinion articulates a very broad and inclusive notion of both parody and
criticism: the “purposes [in the preamble of the fair use statute] are at the heart of
fair use’s protection . . . as they allow later authors to use a previous author’s
copyright to introduce new ideas or concepts to the public.” Id. at 1264.
This is further supported by the fact that the author in Suntrust explicitly
described her work as “critique.” Id. at 1259. By examining the story of GWTW
from the perspective of a slave, TWDG functions as critique: it reveals that social
power is not only confined to the historical moment in which that power is
physically exercised (i.e., while slavery was in practice) as GWTW’s discourse
about the civil war suggests, but extends into the future and determines who
controls the historical narrative. See Declaration of Toni Morrison at 3, Suntrust,
136 F. Supp. 2d 1357 (N.D. Ga. 2001), available at
http://www.houghtonmifflinbooks.com/features/randall_url/pdf/Declaration_Toni_
Morrison.pdf (“The real point of the request to enjoin, the question that seems to
me to underlie the debate is, ‘Who controls how history is imagined?’ ‘Who gets to
Case 19-2420, Document 161, 03/03/2020, 2791520, Page20 of 71
15
say what slavery was like for the slaves?’”). In this way, TWDG served as critique
because it revealed an aspect of America’s racial history that had been absent from
prevailing discourse, a discourse that the racial structures of GWTW itself
“describes, depends on, and about which a war was fought.” See id. Amici and
many other artists use similar approaches to critique as a form of comment or
criticism. This Court protected those uses in Cariou, and it should do so again in
this case.
ii) The plain meaning of “criticism” and “comment” include a broad range of critical practices, including critique.
The plain meaning of “criticism” also supports an inclusion of critique. In
fact, Webster’s in 1977 defined “critique” as “criticism,” and the Oxford English
Dictionary defines “criticism” both as “critique” and “the critical philosophy of
Kant,” which is itself often translated as “critique.” Critique, Webster’s New
Collegiate Dictionary (5th ed. 1977); Criticism, Oxford English Dictionary (Feb.
17, 2020) https://www.oed.com/view/Entry/44598?redirectedFrom=criticism#eid
(citing to etymology back to the 1970s); see also Immanuel Kant, Critique of Pure
Reason (Paul Guyer ed., 2000); Critique, Fowler, A Dictionary of Modern English
Usage (3d ed. 1965) (defining “critique” in terms of “criticism”). Moreover, the
enumeration in which “criticism” and “commentary” occur in Section 107 is
preceded by “such as,” making this enumeration inclusive, not exhaustive.
Case 19-2420, Document 161, 03/03/2020, 2791520, Page21 of 71
16
Campbell, 510 U.S. at 577-78; see also, e.g., Perez v. Loren Cook Co., 803 F.3d
935, 940 (8th Cir. 2015) (holding “the words ‘such as’ [in a regulation] . . .
indicates [the subsequent] list is illustrative rather than exhaustive”). Because the
enumeration of Section 107’s preamble is itself broad, it follows that the individual
terms therein should not be construed narrowly. See Campbell, 510 U.S. at 579.
C. Critique can create new information, understanding, insight, and meaning that weigh in favor of fair use.
In addition to promoting creativity through the preambulatory purposes of
comment and criticism, critique often also has the purpose of generating new
meaning and can thus qualify as transformative use as well. Specifically, by
revealing to the observer an element that was missing from the discourse
surrounding an original work, see Foucault, What is Critique? at 58-60, using an
original work for the sake of critique reveals to the observer “new expression,
meaning, or message” in that work, thus rendering it transformative and weighing
the first factor in favor of fair use. Id. at 579; Authors Guild v. Google, Inc, 804
F.3d 202, 214 (2d Cir. 2015) (“transformative works . . . lie at the heart of the fair
use doctrine’s guarantee of breathing space within the confines of copyright.”)
(quotation marks omitted).
To be transformative, it is generally sufficient if a secondary use adds new
expression, meaning, message, information, understanding, or insight related to the
original work. See Campbell, 510 U.S. at 583; Cariou, 714 F.3d at 705. Yet
Case 19-2420, Document 161, 03/03/2020, 2791520, Page22 of 71
17
creating new meaning through the secondary use can occur even if the content or
appearance of the original remains intact. Swatch Grp. Mgmt. Servs. Ltd. v.
Bloomberg L.P., 756 F.3d 73, 85 (2d Cir. 2014) (“a secondary work ‘can be
transformative in function or purpose without altering or actually adding to the
original work’”) (quoting A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d
630, 639 (4th Cir. 2009)); see also Maxtone-Graham v. Burtchaell, 803 F.2d 1253,
1260, 1265 (2d Cir. 1986) (finding fair use when an author of an anti-abortion
book copied interviews from a pro-abortion book—in part, because the purpose of
such use was “precisely the type of criticism of or comment on copyrighted
materials anticipated by Section 107”).
As this Court held in Swatch, verbatim copying and publishing of a voice
recording of an earnings call is transformative even though the words used on the
recorded call conveyed the same meaning when Bloomberg published the
recording. Swatch, 756 F.3d at 86. This Court found that by publishing a recording
of Swatch’s earnings call, Bloomberg created new meaning by “convey[ing] . . .
not only the raw data of the Swatch Group executives’ words, but also more subtle
indications of meaning inferable from their hesitation, emphasis, tone of voice, and
other such aspects of their delivery.” Id. at 84-86. This is similar to the new
meaning that critique provides, bringing forth missing aspects of the social
discourse around a work.
Case 19-2420, Document 161, 03/03/2020, 2791520, Page23 of 71
18
This Court’s decision in TCA Television Corp. v. McCollum, 839 F.3d 168
(2d Cir. 2016) also supports this approach. In McCollum, the copyright owners of
Abbot and Costello’s famous Who’s on First? comedy routine sued the producers
of Hand to God, a Broadway play, for copyright infringement because in Hand to
God, a character recites nearly verbatim over a minute of Who’s on First.
McCollum, 839 F.3d at 175-76. There, this Court found the secondary use did not
contribute new information, understandings, insights, or meaning related to the
original work and was not fair use. Id. at 187. Here, and with works such as White
Gaze, that is not the case because the raw materials of the original works are
directly used to generate new information, understandings, insights, and meaning
related to the original work.
Similar to the parodies in Campbell and Suntrust and the published
recording in Swatch, White Gaze’s critique of NG’s pages creates new meaning in
those pages. Prior to White Gaze’s critique, the underlying social dynamics giving
rise to the white gaze as a force that affects everybody were present yet dormant in
NG’s pages because the discourse surrounding them had only been about the white
gaze as a tool to subjugate the colonized. See Dizon, The Sediment of Whiteness at
8.
By carefully selecting and removing text from the page, Amici reveal to the
observer how the white gaze affects all members of society—discourse that NG’s
Case 19-2420, Document 161, 03/03/2020, 2791520, Page24 of 71
19
pages had missed or left out. White Gaze’s critique effectively uses NG’s pages to
create new information, understanding, insight, and meaning—transforming them.
Amici urge this Court to reject Goldsmith’s suggestion that a secondary use
is transformative only where there is a clear difference in “purpose,” particularly
given her overbroad use of the term “purpose,” arguing that if two works have the
general purpose of presenting visual artworks the second remains an infringement
of the first. As this Court held in Cariou—completely consistently with
Campbell—one artist’s use of another’s prior work as raw material to provide new
information, understanding, insight or meaning is fully protected by the fair use
doctrine, regardless whether both fall within the general category of works of
visual art or the like.
The district court was therefore plainly correct in finding that Warhol’s
creative changes in scale, color, cropping, delineation and other aspects of
Goldsmith’s photograph transformed it either because he thereby employed new
and distinctive aesthetics or because he provided a new and distinctive message or
meaning, in this instance by presenting Prince not as the “vulnerable human being”
captured by Goldsmith’s artistry but as the disembodied, celebrified icon projected
onto his public audience. See AWF, 382 F. Supp. 3d at 326; see also Declaration of
Neil Printz, JA-1328-30. Warhol did so, the district court found, by utilizing his
own creative processes, thus making his work recognizably “a Warhol,” in the
Case 19-2420, Document 161, 03/03/2020, 2791520, Page25 of 71
20
district court’s phrasing—a term that does not at all elevate Warhol over
Goldsmith as an artist, let alone (as Goldsmith incorrectly argues) provide Warhol
with a license to infringe, but simply recognizes that his work has a recognizably
distinct aesthetic and message from hers. Warhol’s critique of Prince’s celebrity
life by using Goldsmith’s photo was thus fair use. By leaving fair use doctrine
open to critique as a transformative use, this Court will provide breathing room for
all artists—not just those as famous as Warhol—who, like Amici, rely heavily on
critique, to continue creating valuable expressive works.
II. Reuse of Archival Materials to Comment On or Criticize Works Via Recontextualization Is a Purpose that Favors Fair Use.
A. Engaging in archival reuse for the purpose of recontextualization favors fair use.
In addition to critique, many artists, scholars, and commentators employ the
well-established technique of recontextualization for comment or criticism, reusing
archival works as raw material to create new information, understanding, insights,
or meaning. For contemporary art in particular, “the culture of copying . . . is
central to creativity.” Amy Adler, Fair Use and the Future of Art, 91 N.Y.U. L.
Rev. 559, 567 (2016). Amici and a growing number of other contemporary artists,
scholars, and critics practice recontextualization as part of their creative practice,
acts often known under the popular term “appropriation.” See generally
Appropriation (David Evans ed., 2009) (surveying artists across movements who
Case 19-2420, Document 161, 03/03/2020, 2791520, Page26 of 71
21
explicitly reuse images in their artworks to create new meaning). Because
copyright law should strive to advance, rather than stifle, artistic creativity,
scholarly discourse, and public commentary, it must always see copying in context
and protect copying when it furthers these purposes. See Cariou, 714 F.3d at 705
(noting that whether a work is transformative is “an open-ended and context-
sensitive inquiry”).
Many forms of modern appropriation involve the practice of
recontextualization. Recontextualization adds to or changes the meaning of
appropriated works by altering the relationship between elements in the discourse
that give the image its meaning. These elements may be facets of the image itself,
the relationship between the image and its surrounding text or publication, or the
presentation of the new work in a certain context. White Gaze, for example,
recontextualizes pages from archival NG issues, changing the meaning of these
pages through the alteration of the images and text, their audience, and the
historical and geographic context in which Amici’s work is produced.
The original context of a work includes all the ways in which its meaning is
socially constructed against the background of a set of socially agreed-upon norms,
practices, and concepts as they existed when the original work was produced. In
addition, an image’s meaning is not based solely on what is in the frame. See
Dizon, The Sediment of Whiteness. A work’s original context includes the
Case 19-2420, Document 161, 03/03/2020, 2791520, Page27 of 71
22
historical circumstances that allowed such an image to be captured, such as
histories of colonialism and imperialism. See id. (“What were the conditions that
made this image possible?”). Further, discursive context includes the placement
within an NG volume surrounded by text and other images. See id. (describing an
NG image from 1916 captioned “South Australian Blackfellows: These savages
rank lowest in intelligence of all human beings”). Discursive context also includes
the context in which the images are consumed. See id. (“Who is viewing [an
image] and how does this audience define certain parameters for address?”). All
these elements, and their relation to each other, create the original context and
meaning of the NG pages.
Amici recontextualize these pages by severing the original relationships
between elements in the discourse and then reframing them, creating certain
alternative relationships, including the relationships amongst images in the volume,
the relationships between images and text, and publication in our current historical
moment. Amici severed the NG pages from a broader colonialist discourse, first by
choosing NG from myriad other books and magazines documenting the colonized
world. Then, from a collection of NG publications, Amici focused on a specific
era—pre-1970s—because “after the ‘70s there is a shift from the rhetoric of blatant
racism to a more liberal, then neoliberal way of handling difference.” See Michelle
Dizon & Việt Lê, Worlds, Words—The Afterlife of Images, in White Gaze (2018).
Case 19-2420, Document 161, 03/03/2020, 2791520, Page28 of 71
23
Next, Amici selected particular pages of the magazines that spoke to the “white
gaze” that pervades NG. See id. (“What stood out to me was not the content of the
images, but the perspective of the magazine. . . . I was looking at whites looking.
. . . I [was] . . . drawn to those images where this looking was laid bare.”).
Amici then excised text to sever links between the images and their surrounding
text, and Lê added poetry to create a new discursive background for the NG
images. As reflected below in Figures 1 (depicting the original NG page) and 2
(White Gaze’s reproduction after excision of text), Amici have removed most of
the original words, leaving behind “it was realized that / The university was also / a
British / technique.” Lê’s poetry, as shown in Figure 3, uses the images and text as
a starting point to “contextualiz[e] Dizon’s images in the history of empire and
unleash[] a rhythmic play with language, both visually and aurally, to cut to the
core of how meaning is produced.” Michelle Dizon & Việt Lê: White Gaze, Sming
Sming Books, https://www.smingsming.com/products/michelle-dizon-việt-le-
white-gaze/ (last visited Feb. 17, 2020). Finally, White Gaze has a foreword and
afterword explaining Amici’s purposes, process, and philosophy. Thus, though the
physical images are the same, the meaning of the pages is different: changed by
shifting the images’ discursive context.
Case 19-2420, Document 161, 03/03/2020, 2791520, Page29 of 71
24
Figure 1: National Geographic, Feb. 1965, at 213
Case 19-2420, Document 161, 03/03/2020, 2791520, Page30 of 71
25
Figure 2: White Gaze (2019)
il was reali.ed Ihnt
a British
t~hnique
Case 19-2420, Document 161, 03/03/2020, 2791520, Page31 of 71
26
Figure 3: White Gaze (2019)
Case 19-2420, Document 161, 03/03/2020, 2791520, Page32 of 71
27
Amici’s recontextualization of NG’s images invites the reader to consider
forces beyond the frame of the photograph. Daniel Blight, in his review of White
Gaze, describes White Gaze’s meaning as constituted in part by
recontextualization. He explains how the relationship between Figure 1, an image
of a white woman “standing above three crouching black men” in a way suggesting
that “she has something to explain,” and Lê’s accompanying poem in Figure 3
enlarges the image’s meaning to become a form of criticism of the British
university system. Daniel C. Blight, Michelle Dizon & Việt Lê: White Gaze, 1000
Words, http://www.1000wordsmag.com/michelle-dizon-viet-le (last visited Feb.
17, 2020). See also Michel Foucault, Discipline & Punish: The Birth of the Prison
(noting that the force of “biopower” along with physical or psychological
imprisonment can be extended to the use of discipline found in educational settings
such as universities).
Warhol’s work can also be understood as discursive recontextualization that
changes the meaning of the original image. Warhol’s physical alterations to the
Goldsmith photo severed, reframed, and added relationships between elements of
the photo in a way that sublimated the humanity and vulnerability of Goldsmith’s
original. In a literal sense, Warhol severed the connection between the head and the
torso. See Declaration of Neil Printz, JA-1328 (noting that the image was cropped
“so that the head becomes disembodied”). The dimensions of the image, which are
Case 19-2420, Document 161, 03/03/2020, 2791520, Page33 of 71
28
part of the relationship between a work and its surroundings, were enlarged to
nearly twice the original size, making the image take up more space in the world.
Id. at JA-1329. Warhol’s use of high contrast effectively removes the depth of
Prince’s expression. See AWF, 382 F. Supp. 3d at 326 (“Prince appears as a flat,
two-dimensional figure in Warhol’s works, rather than the detailed, three-
dimensional being in Goldsmith’s photograph”). And the addition of often
“distinctly unnatural” colors to several of the works adds an element to the
discourse that is not typically associated with a human face. Declaration of Neil
Printz, JA-1330. These alterations effectively remove the humanness of the photo,
thereby altering the discourse to change the image’s meaning and transform Prince
into “an iconic, larger-than-life figure.” AWF, 382 F. Supp. 3d at 326. While
Warhol might have used different aesthetic practices to produce his paintings, the
Prince Series and White Gaze demonstrate some of the recontextualization
techniques that contemporary artists use to generate new information,
understanding, insights or meaning. This Court’s approach in Cariou allows a
broad range of artists, commentators, and scholars—not just the Warhols of the
world—to apply these techniques for the enrichment of society.
Case 19-2420, Document 161, 03/03/2020, 2791520, Page34 of 71
29
B. Recontextualization can generate new information, understanding, insight, and meaning that weigh in favor of fair use.
This Court’s decision in Bill Graham Archives discussed the
recontextualization of copyrighted images as a means of altering or adding to the
meaning of an original work. See Bill Graham Archives v. Dorling Kindersley Ltd.,
448 F.3d 605, 609 (2d Cir. 2006). In that case, Dorling Kindersley used concert
posters owned by Bill Graham Archives in a biographical book, Grateful Dead:
The Illustrated Trip. Id. at 607. The court found that Kindersley used the images
for a biographical purpose. See id. at 609 (recognizing “that Illustrated Trip is a
biographical work documenting the 30-year history of the Grateful Dead”). The
court discussed the relationship between the text and the images, noting that some
images clearly “enhance[] the reader’s understanding of the biographical text,”
while in others the link between the image and text is less obvious. Id. at 609-10.
The court concluded that all the images “serve as historical artifacts graphically
representing the fact of significant Grateful Dead concert events selected by the
Illustrated Trip’s author for inclusion in the book’s timeline,” and therefore all
images are transformed. Id. at 610. Each of these considerations—the biographical
context, the relationship between image and text, the relationship between
historical facts as represented in a timeline—are elements of the discourse that give
meaning to the concert posters as historical artifacts, rather than advertisements.
Case 19-2420, Document 161, 03/03/2020, 2791520, Page35 of 71
30
Even when the link between image and text was less obvious, this Court found the
use just as transformative as overt connections.
Other courts, including the Supreme Court, have considered elements of a
work’s context, including the social and historical contexts of the works and
audience reception. In Campbell, for instance, the Court references the social
context of the Orbison song as the “white-bread original.” Campbell, 510 U.S. at
582 (quotation marks omitted). Likewise, this Court’s decision in Koons references
the “prism of slick fashion photography” in a nod to the social context of the
original work. Blanch v. Koons, 467 F.3d 244, 255 (2d Cir. 2006). In that case, Jeff
Koons appropriated a photograph by Andrea Blanch that appeared in Allure
Magazine. Koons’s work, “Niagara,” depicted four pairs of women’s feet and
lower legs, including Blanch’s photograph. Id. at 247-48. This Court made
reference to the distinct contexts of each work: Blanch’s photograph as “a fashion
photograph created for publication in a glossy American ‘lifestyles’ magazine” and
Koons’s artwork as “part of a massive painting commissioned for exhibition in a
German art-gallery space.” Id. at 253; see also Hughes v. Benjamin, No. 17-cv-
6493 (RJS), 2020 WL 528704 (S.D.N.Y. Feb. 3, 2020) at *4 (Sullivan, J., sitting
by designation) (finding a new work may be transformative “even where it consists
entirely of portions of the original work, or indeed even where it is an ‘exact
Case 19-2420, Document 161, 03/03/2020, 2791520, Page36 of 71
31
replication’ of the original work” based, in part, on the context of the secondary
user’s title of the work and overall content of his YouTube channel).
In Amici’s work, White Gaze, one can see similar differences in context that
generate new information, understanding, insight and meaning. The original work,
National Geographic, was consumed as a “first view to a vast and wondrous
world.” Dizon, The Sediment of Whiteness. White Gaze, in contrast, has a very
different—a transformed—meaning and use. “In my view,” writes a reader of
White Gaze, “the importance of White Gaze is that it uses photography and poetry
to ask white people to feel less comfortable in our whiteness (and for an increasing
number of us, our new-found ‘wokeness’) and instead find ways to meaningfully
resist our own white subjectivity.” Daniel C. Blight, Michelle Dizon & Việt Lê:
White Gaze, 1000 Words, http://www.1000wordsmag.com/michelle-dizon-viet-le/
(last visited Feb. 17, 2020). See also White Gaze, Afterward (emphasizing how
whiteness—and race—are ever-evolving constructs in the context of the white
gaze). These creative contributions, enabled by recontextualization, are part of the
fair use doctrine’s goal of enriching society. They should be protected.
Case 19-2420, Document 161, 03/03/2020, 2791520, Page37 of 71
32
CONCLUSION
In affirming the district court’s fair use finding, Amici urge this Court to
follow its approach in Cariou and protect commentary and criticism, including
critique and recontextualization, as fair use.
Dated: February 28, 2020 Respectfully submitted,7 New York, New York
By: /s/ _Jason M. Schultz_____
JASON M. SCHULTZ Counsel of Record CHRISTOPHER J. MORTEN NYU Technology Law and Policy Clinic NYU School of Law 245 Sullivan Street, 5th Floor New York, NY 10012 Telephone: (212) 998-6430 [email protected] Counsel for Amici Curiae Latipa (née Michelle Dizon) and Việt Lê
7 Counsel wish to thank law students Laurel Boman, Austin Gillett, Jesse Kirkland, and Joseph Rabinovitsj for their contributions to this brief.
Case 19-2420, Document 161, 03/03/2020, 2791520, Page38 of 71
33
WHITE GAZE
Images by Michelle Dizon Text by Vi$t Lil
Case 19-2420, Document 161, 03/03/2020, 2791520, Page39 of 71
34
THE SEDIMENT OF WHITENESS ' Introduction by Michelle Dizon
Just as none of us is outside or beyond geogrilphy, none of us is completely free
from the struggle over geography. Thai struggle is complex and interesting because
it is not only about soldiers and cannons bUI also about ideas, about forms, about
images and imaginings.
-Edward Said, Gllllllre and Imperialism
I.
There are literal aspects to the while gaze-many of which are represented in this volume: a while
photographer shooting their subaltern subject, a while writer steering the meaning of a picture, a
while scholar constru cting knowledge about the world. BUI the while gaze does nOI only belong \0
while people. Vi~1 and [ both grew up with l\'alional Geographic. We consumed it as while people
did: as a first view to a vast and wondrous world. It was a consumption that lived, paradoxically,
alongside our colonial histories. As Filipino immigrants and Vietnamese refugees to the United States,
our life worlds were ravaged by whiteness-the manifest destiny and " benevolence~ that excused
the dispo~session, exploitation, and massa cre of our peoples, the continuing neoliberal policies
thai maintain the destruction of our homelands, and the struggles our families waged to survive
in America. Thus, While Gaze emerges from a contradiction: on the one hand, the white gaze is the
way we have been and continue to be constituted as Filipina and Vietnamese subjects in the United
States-all of the tired tropes that have shaped our lives and continue to move with us through the
world. On the other hand, the white gaze is the whiteness that has sedimented inside of ourselves-all
of the ways we have internalized its posi t ion, its power, its authority, its knowledge, its scope, and
most importantly for this writing, its blindness, despite ourselves.
It is too easy and too difficult to leave the images contained in this volume in the past. Too easy because
lhmllgh 2 1~1-r:~nhlry ~y~~, lh~ rari~m ~~~m~ ~o rllrlim~nlary lhal w~ ran r:()ngrahllal~ mlrs~lv~~ on
our distance from it. Liberal whites might pat themselves on the back for recognizing the abhorrent
representations in these images, a f"dcism that they would nel'er embody. People of color might feel
relief that society has progressed to a place where such images are not normalized; they, thank/ully,
do not see themselves reflected. Yet both reactions depend on a philosophy of history in which the past
can be distanced from the present, and in which the movement of time is seen as a forward trajectory
toward the ethical development of humanity. It is my assertion that such a philosophy of history, in its
linear motion, is integf"dlto a geogf"dphy of whiteness. It keeps us from asking difficult questions about
how the past lives in the present. It keeps us from understanding that each of our movements ripple
from the future. It keeps us naive to the political work of images, dumb to their ideological production,
and fearful oflosing all that we've gained by accepting the blind spots of whiteness as our truth.
iVhile Gaze is a struggle over geography. It emerges from the histories of chattel slavery and senler
colonialism that have ravaged our lands, our ancestors, and our life worlds. It is engaged with
"ideas, forms, images, and imaginings~-a ll of the ideological geographies Edward Said identified as
Case 19-2420, Document 161, 03/03/2020, 2791520, Page40 of 71
35
constitutive to imperialism. It also expands our understanding of geography to attend to both its outer
and inner lives, to ask how geographies live inside of us and map our psyches. The images contained
in this volume are not to be relegated to the past, but insistently of the present. They lay the ideological
foundation for contemporary racialized vulnerability. In order to understand this, we must dispel the
assumptions we have about three terms that we think we know: images, representation, and propeny.
It is our basic understanding of these terms that construct the fantasies of racial capitalism.
In what follows, I will develop a method for thinking about images, not in the content that they show,
but in the multiple forces and conditions that rupture an image's surface. These ruptures reveal deep
materialities and dynamics of power and position that are normally thought 10 be extraneous to an
image's meaning. They lay bare the fantasy of subaltern empowerment and the horizon of inclusion
IOward which neoliberal discourse would like for us to orient our demands. Anclthey reveal a double
articulation that is central 10 the production of whiteness-namely, that at the same time our images
are welcome and we are inviterllO inclusion, we are being appropriated and even owned through an
underslanding of property that has emerged with and through colonial modes of appropriation.
II.
We can look to the discourse of A't/tiollal Geographic to understand the terms-image, representation,
and property-more concretely. In April 2018, Natiollal Geographic published the first of a yearl ong
series on race. Susan Goldl)erg, the magazine's Editor in Chief, penned an introduction entitled "For
Decades, Our Coverage Was Racist. To Rise Above Our Pa st, We Must Acknowledge Jt, ~ which Jays out
how National Geographic will examine their own hislOry or racism as a necessary prelude 10 speaking
about rdce in the world. This re-examination, aided by the analysis of John Edwin Mason, Professor
at Universit y of Virginia, contextualizes Natiollal Geogmphic in colonialism and directs our allention,
not only 10 the racial stereotypes that dominate the magazine's discourse, but also 10 the hislOrical
erasures that are equally telling of the magazine's racial politics. Mason writes, "It's possible to say
that a magazine can open people's eyes at the same time that it closes them."2
While Goldl)erg desires 10 unearth Natiollal Geographic's past rdcism, her perspective is limited by
lh~ lih~ral fanlasy of Sl lhall~rn ~mpow~rm~nl O1nrllh~ insirliOlls l~gary ofposilivism lhal gov~rn h~r
worldview. This is illuslJ'"dted in the representations that leave her aghast, as opposed to those she
celebrates. For example, Goldberg writes about an article that leaves her "speechless"-a pholO from
1916 with two aboriginal people captioned "South AuslJ'"dlian Blackfellows: These savages rdnk lowest
in intelligence of all human beings." She contrasts such an image with a 2015 Natiollal Geographic
slOry about Haiti where Haitians l)etween the ages of 14 and 30 were given camerdS 10 "document
the reality of their world." As a remedy 10 the racism and erasure of A't/liollal Geographic's past,
these "young Haitians" (J put this in quotes because the infantilization of adults as "young" seems
specious here) with camerdS represent a form of subaltern empowerment: the capacity for the youth
10 represent themselves. Furthermore, it seems 10 celebrdte the magazine for coming so far from the
rhelOric of the stupid savage. All the while, we understand that the stupid savage was also a form of
inclusion for its moment.
Yet what is laid bare by Goldl)erg's celebrdtion of "young Haitians" are the dynamics of power and
position that underlie the images. What celebrating the instance of "young Haitians" with cameras
Case 19-2420, Document 161, 03/03/2020, 2791520, Page41 of 71
36
does is elide are all of the invisible steps of the process, steps that in fac t need to be invisible in order
to produce a fantasy of subaltern empowerment. Who chose the "young Haitians~? Who bought the
cameras? How did the cameras arrive in their hands? Who taught them how to use the cameras?
Who collected their images? Who cropped and color-correcled their images? Who chose which images
would appear in the magazine? Who wrote the copy? Who is the audience of the article? How is this
address reflected in its "voice~? Goldberg's celebration is premised on the understanding that these
"young Haitians ~ are innocent or untouched by the desires of National Geograpllic and its au di ence, as
opposed to what is surely true-that they were performing for the white gaze, offering scenes to meet
the desires of its producers.
The liberal fantasy of subaltern empowerment cannot ask these questions because they go to the heart
of the material inequities that exist. They reveal that, in fact, the "young Haitians~ are/wI necessarily
"documenting the reality of their world,~ even if their eyes are behind the lens. [n fact, they might be
making and performing a world to satisfy the white gaze. As such, the liberal desire for these "young
Haitians~ to share their worl d is paradoxically and simultaneously undercut by the visibil it y that their
representation in the magazine supposedly offers. [n the inequity of this power and poSition, also lies
the appropriation of the image of "young Haitians~ for a magazine whose economic life depends on
first, expanding their readership for a new generation, and second, continuing to produce images of
"the world~ which, adapting to the conditions of the turn of the 21st century, must do so through the
language of inclusion.
The first step toward making more complex our understanding of what an image is, means to shift
it from a static frame to an unfolding and iterative event whose substrate is always the materials
conditions that make the event possible. A political understanding of images requires that we approach
each image as a rupt ure, produced by the multiple pressures that constitute its frame. These pressures
might include the formal properties of an image--composition, depth of field, tonal range, framing,
lighting-for such visualities certainly influence the way that an image makes meaning. But they
also include elements that are often considered exu",meous to the image. What were the conditions
that made this image possible? Who is looking at whom and what defines this relationship? What is
included and what is left out? What are the ways this image lives? Who is viewing it and how does this
audience define certain parameters for address? What are the streams into which the image enters?
How rl~s lh~ l~xl mm~ 10 anrhor lh~ imag~ irl ~ologir;llly? How rio n~w anrl rliff~r~nl pressures of
history re-work the dynamics of the image? Once we understand images as ruptures, so too can we
begin to understand the nature of the sediment that remains.
III.
The white gaze has appeared in our lives as kind of insistent, omnipresent demand to address
ourselves to and to become legible for the white world. [ts most insidious operation is that it becomes
installed in our psyches as desire itself-a desire for whiteness that unconsciously drives the terms
of one's life, who one loves, where one lives, what one wants to be, what one lives for, and what one
thinks it is possible to do. At a certain point, one realizes that one is not only a victim, but an agent in
this madness-not only had [been ef"dsed, but in facl, J Ilad done tile erosing. And by erasing myself, or
alternately, broadcasting my suffering in the multicultural parlance that gains one entry into all of the
good things oflife, [ have amassed access and opportunity, comfort and belonging, wealth and status.
Case 19-2420, Document 161, 03/03/2020, 2791520, Page42 of 71
37
I have been able to survive and beller yet, even climb the ladders that define success in this world, all
the while burying the parts of me that, against my will, refuse such submersion.
The geographies of whiteness not only divide the world with walls, treaties, laws, guns, but also
become mapped in our psyches-as power and privilege, mobility and propeny, accumul ation and
knowledge-all of the ways in which whiteness means so much more than the color of one's skin. Even
if one has done consciousness work, it still leaves a residue, despite oneself. This is the sediment, what
remains of whiteness, even though we think we have worked hard to expunge it. Like a chameleon,
it remakes itself, blends into the scenery, scurri es through cracks, and sits in plain sight, unseen.
One of the most insidious ways that whiteness tricks us into believing its ploys is by dangling some
version of our acceptance before us, a sign of vali dation that makes us think that things have changed
for the beller. Let us again move through the rhetoric of A'alionai Geographic to understand this
dynamic in depth.
Goldberg writes: "How we present racemallers.lhearfromreadersthatA.alionai Geographic provided
their first look at the world. Our explorers, scientists, photographers, and writers have taken people
to places they'd never even imagined; it's a tradition that still drives our coverage and of which we
are rightly proud. And it means we have a duty, in every story, to present accurate and authentic
depicti ons-a duty heightened when we cover ff",lUght issues such as race.~ Ultimately, Goldberg
grounds the magazine's "duty~ in the terms of "acCUf"d cy~ and "authenticity~-functions of truth
which any humanities undergraduate willtelJ you are more fic ti on than fac t. The "tradition~ ofglolJal
coverage, of which Goldberg claims she is "rightly proud,~ is extolled in the so-called truth that the
magazine upholds in their reportage. Yet, if we sit with Goldberg's statement for a moment, it begins
to unravel. The "tradition~ she is upholding is not the accuracy of the story told, but the material
inequities that exist between the magazine, the explorer, scientist, photographer, writer, and the
subaltern subjects who are being exposM.
Goldberg goes onto write: "$0 let's talk about what's working when it comes 10 f"dCe and what isn't.
Let's examine why we continue 10 segregate along f"dcial lines and how we can build inclusive
communities. Let's confronttoday's shameful use of racism as a political slf"dtegy and prove we are
beller than this.~ No doubt the rhetoric of her plea emerges in the era of Trump, when a renewed
vigor anrll~gilimary 10 rarisl irl~ology has fmmrl full forr~. BUI il also sJl~aks 10 lh~ ullimal~ Jlrohl~m
of liberalism-the invocation of a "we~ which does not, in fact, include us. Goldberg's blind belief
in "inclusive communities~ helps us 10 understand this inclusion is the horizon of her desire, an
inclusion for which she is a kind of steward. But in truth, her stewardship functions more like a
colonial administrator, making sure the images stay in their place.
IV.
It is one thing 10 critique Goldberg's statements, it is another thing 10 try and understand how we
have internalized the self-same liberalism in the slf"dtegies we take 10 respond 10 our peculiar status
in the field of vision-both invisible and hypervisible. "There were no images of myself. I had 10 make
them.~ I hear this time and time again from cultural producers of color of all ages. I understand where
this statement this comes from. The erasure is real. Growing up in Los Angeles, there were no images
of my all-too-human and all-too-flawed immigrant Filipino family struggling tooth and nail 10 survive.
Case 19-2420, Document 161, 03/03/2020, 2791520, Page43 of 71
38
Where was my grandmother, so alienated by her migration that she saw snakes growing from her
neck and nu rsed one cup of coffee from sunrise to sundown? My father who moved trash at the rich
Jewi sh hospital for Hollywood elite, and ducked out to the basement for half his shift with all the other
Blacks, Mexicans, and Filipinos to drink whiskey and play cards? Or my mother who got arrested , time
and time again, for shoplifting the things we wanted so badly but could not afford? Such stories of our
wayward di aspora would never grace the pages of A'ational Geographic.
Yet, the white gaze continues to live in me as the voices swim in my head: I shouldn't say these things.
I should celebrate my family lest I perpelllate stereotypes Of the lazy, lying immigrants. Should I qualify
ollr pCll'crty by speaking of all tile IUI'e and care I reccil'ed? Stay objeclil'e, YOllr slOr), is irrelel'Gllt! The
voices continue and the whiteness within keeps me questioning the wisdom of my own desire to be
true to the life that I have lived. Paradoxically, the problem of "no images of myseJr lives alongsi de an
opposite phenomenon that stems from the same dynamic: too many images. This glUl of images is the
ongoing archive of subj ection, dehumanization, servit ude, objectification, prim itivization-the ki nd of
images that reek from this volume of iVllite Gaze and whose continuity, I would argue, exists in most
images of people of color today.
We navigate a world where inclusion is normalized as the goal toward which we must aspire. We
believe this and work hard 10 make it into the film festival, the exhibition, the law firm, the tech
company, the academe, and while we might not turn a blind eye to the racism we encounter along
the way, we do turn a blind eye 10 the aim itself. If the endpoint of our desires is our inclusion in the
systems that oppress us, we will always be led 10 reproduce the systems and structures that eXist,
despite our best intentions, systems and structures which are, at their core, racist.
The legacy of the images contained in this volume lives on in the elision of the structural inequalities
that determine an image's production and distribution, as well as in this drive toward visibility,
systemized and excused through a recourse 10 "trUlh.~ When I ask us 10 look at these images and
what have we internalized, I mean this: we are taught to set our desires toward our visi bilit y. But when
those images enter into streams that have not been determined by us, they become another feather in
the cap of multicultural inclusion; they become something that can be appropriated IOward ends that
normalize the inequity of the material conditions that exist; they become flXlder that paradoxically
rP.nrlp.f~ VIII np.rnhlp. rom mlln i1 ip.~ p.vp.n mOfp. VIII np.rnhlp.
v.
The world as-it-is depends on our deaths, fast or slow. This small truth is one that could never be
admilled by power, and yet its structural properties are laid bare each time truth is a dUly and
inclusion is a horizon of politics. After all of Goldberg's rhetoric concerning the "fraught issue of race
had settled, her function as a colonial administrator was made clear 10 me when A'aliO/wl Geographic's
sales department contacted me in January 2019, almost one year after iVhile Gaze's original date of
publication. They asked if I had licensed the images for iVhile Gaze. When I replied that I had not
because the project is protected under Fair Use, they replied that because the images are in a printed
book that is sold for money, it is not protected under Fair Use. The sales department forwarded the
mailer to the magazine's legal department who are now sitting on the situation.
Case 19-2420, Document 161, 03/03/2020, 2791520, Page44 of 71
39
While the magazine has not (yet) acted upon their demand for licensing fees, the situation lays bare
the reality of Natiollal Geographic's claim to deal with their rJcist pas\. The editorial department
uses words that still long for some kind of better world, even if they are confused on how 10 get
there. The sales department has no need for such rhetoric. The mailer is as clear as day: they believe
they own these images. They see these images as their propeny, and effectively dispossess all those
photographed of a claim to themselves, as images. Furthermore, they guard the terms of use of these
images and continue to profit off the images' afterlives. This sheds new light on the example of the
"young Haitiansn for we understand that the material inequity of the relation is not only one that
takes place when the magazine puts the cameras in their hands, and not only one that takes place
with the publication of the story, but actually, an ongoing property relation that will live on long
past the lifespan of any of the "young Haitians U or those they photographed. [t will live on in who
claims to own the image just as who claims to preserve and archive the image. If, as Goldberg claims,
National Geographic provides a "first look at the world n then we understand this "firstlook~ actually
instantiates a modern subject who can possess and appropriate the world.
[t is a double articulation--{)n the one hand A'ational Geographic's desire 10 analyze history and work
toward inclusion, and on the other hand, their demand for licensing fees for the images used in iVhile
Gaze. [n this double articulation, the contradiction of neoliberal racial capitalism is revealed. [t is
necessary for an institution like I\'aliollal Geographic to desire to be just in their work and to imagine
themselves advancing a progressive politiCS, while at the same time, maintaining the material
conditions for wealth and accumulation that have kept them in operation for over a century.
[f iVhile Gaze is a work in the sediment ofrace and property ownerShip, then perhaps, our excavation
has managed to arrive at a bedrock: we cannot fall into the liberal ruse to imagine that newer, beller,
more accuJ'"Jte images will fix the devastation of our communities. They will not. Rather than seek
visibility, we must strategize our approach along multiple registers. We must seek redistribution
and reparations and think creatively about ways 10 unsettle, even topple, the very institutions that
profit off the economy of images-those that take our images, those that house our images, those that
presume they own our images. We must create alternatives to the legal parameters of intellectual
property whose assumptions concerning the ownership of images are identical 10 the colonial project.
We must build community-based grassroots structures 10 hold our memories sacred. And finally, we
mliSI mnlinllf~ 10 mak~ imag~s, hili arlrlress Ih~s~ imag~s 10 ollfs~lv~s anrl 1~1 Ihos~ w~ holrl rlos~,
those we love, those we wish we could have known, those who have been disappeared, those who
bring us joy, those whose life force, known or unknown, dead or alive or yet to come, guide the terms
of our work. Only these images will refuse capture. Only these images will lay the foundation for our
collective healing.
Thank you Yusef Omowale for ongoing con~ersations and collaborations which are central to this writing, Jason Schultz for your support In pursuing this second edition, ViI/Ian Smlng for your invaluable editorial ad~lce, Wendy Cheng for your astute reading and encouragement, VI~t Lefor being my partner-In-crime and liberation, and Camilo Ontiveros for being my ground and hokllng me truetowhat Is at stake.
2 Susan Goldberg, "1"0 Rise Above the Racism of the Past, We Must Acknowledge It," National Geographic, The Race Issue, April 2018, 6
Case 19-2420, Document 161, 03/03/2020, 2791520, Page45 of 71
40
Case 19-2420, Document 161, 03/03/2020, 2791520, Page46 of 71
41
Egypt Palesdne
Cambodia and
the world ...
Case 19-2420, Document 161, 03/03/2020, 2791520, Page47 of 71
42
I. (1934) Egypt' Palestine Cambodia and world
own what do we own,
own
UII ami UII
abandon
own up to it, our wars
whom do we own
drone
drown drone
drone drone on and onand
(emlless) (end) what you own
own Dun ijS ijS/oun 2
Cambod ia Palestin e Eygypt and world
is this th e way the world not with a bang
is this th e way the world ends endless
ends
war endless war (drone)
but a whimper
The Anglo - Egyptian Treaty of 1936 was a treaty signed between the Uniled KjoQ!iQm and the tung.d.om..QLEgypt it is officially (but seldom) known as The Treaty of Alliance Between His Majesty, in Respect of the United Kingdom, and His Majesty, the King of Egypt Under the terms of the treaty, the J.Inil..ed...t\g.d.Qm was required to withdraw all its troops from E{J.\'.ill. except those necessary to protect the 5''''1 Canal and its surroundings, numbering 10,000 troops plus aUKiliary personnel . Additlonallv. the Unjted KjnaQQm would supplV and train Eg)lpt's army and assist In Its defence In case of war. Thetreatv was to last for 20 years-
2 Cambodian word for vouJ younger slsterl brother
Case 19-2420, Document 161, 03/03/2020, 2791520, Page48 of 71
43
II. (1935)
she was destroyed
she of the interval
by and by
search and destroy she was
3 US Military Operations 1930-1944
1930- 1939
she was was
she was
iell LVar was
1932 - China; American forces were landed to protect American interests during theJapanese occupation of Shanghal.-=
1932 - United States: 'Bnol.S Armv" of 17,000 WWI ~eterans plus 20,000 familv cleared from Washington and then Anacostla flats 'HoOl/er'llille" bV 3rd Ca~alry and 12th Infantry Regiments under Gen. Douglas MacArthur, July 28
1933 - Cuba; During a re~olution against President Gerardo Machado na~al forces demonstrated but no landing was made.-=
1934 - China; Marines landed at.Eoo..c.hnw: to protect the American Consulate.-=
1940- 1944
1940 - Newfoundland, Bermuda, St . Lucia, - Bahamas, Jamaica, Antigua, Ir.!n!!!;M!, and British Guiana: TrOOPs. were sent to guard air and na~al bases obtained under lease by negotiation with the United Kingdom, These were sometimes called lend- lease bases but were under the De$lrovers for Bases Agreement taaoJUl
US Marine operators smooth operator
operator orator uperatur perpetratur
(military) operation 3
wasteland
was I what
1941 - Greenland Greenland was taken under protection of the United States in Aprll.l&t<Il12I
1941 - Netherlands {Dutch Gulana~ In No~ember, the President ordered American troops to occupy Dutch Guiana, but by agreement with the Netherlands government in eKile, Brazil cooperated to protect aluminum ore supply from the baUKite mines in SUrlname,tIUOlm
1941 Iceland Iceland wastaken underthe protection of the I loited Stales with consent of its go~ernment replacing British troops, for strategic reasons,taaoJUI
1941 - Germany: Sometime in the spring, the President ordered the Navy to patrol ship lanes to Europe, By July, U,S. warships werecon~oylng and by September were attacking German submarines. In November, in response to the October 31, 1941 sinking of the IISS Re!!ben 'ames the Neutrality Act was partly repealed to protect U,S. military aid to Britaln,l&>O.1l2I
1941-45 World war II! On December B, 1941, the United States declared war againstJapan in response to the bombing of pearl Harbor, On December 11, Germany rledarerl war aoalo~I the !Joiler! SIale~ .l>I
Case 19-2420, Document 161, 03/03/2020, 2791520, Page49 of 71
44
99
Case 19-2420, Document 161, 03/03/2020, 2791520, Page50 of 71
45
FLAG OF CONQUEST
Case 19-2420, Document 161, 03/03/2020, 2791520, Page51 of 71
46
II I. (1935)
flag of conquest
Case 19-2420, Document 161, 03/03/2020, 2791520, Page52 of 71
47
IV. (1939)
is watermelon
the European
for for fortune
con mi madre
is time water
tune
time
foundation
and Modern conquest
chronotopes of modernity temporal brutalities
time and again
con quest
conquistador
Case 19-2420, Document 161, 03/03/2020, 2791520, Page53 of 71
48
)'Iodern commerce
IS WATERMELON TIME
the
European
and
foundation for
387
forlune
?
Case 19-2420, Document 161, 03/03/2020, 2791520, Page54 of 71
49
62
Case 19-2420, Document 161, 03/03/2020, 2791520, Page55 of 71
50
V. (1940)
fuzzy-tops
natives
appear to be
figures transfigure transfiguration
bare yourself
fi gurines on bare feet
civilizing missions4
unbearable
4 The North African Campaign of the Second Wodd War took place In Noah Attica from 10 June 1940 to 13 May 1943 It Included campaigns fought In the ~ and E{Ml1ian deserts{Wedem Desert Campaign also known as the Desert war) and In ~ and Aiglllii. ("peratioo Torch) and IwlJ..lliI.ffim!§la Camp..ilgDj
The campaign was fought between the AUks. and AJli.s..w.w.ers. many of whom had c..ololiallnterests In Africa dating from the late 19th century. The Allied war effort was dominated by the British Commonwealth and eKlles from Ge.nn.a.n:: .QC..C.lj~AA The 1Jnllitd...51.alJts entered the war In December 1 941 and began direct military assistance In North Africa on 11 May 1942.
Case 19-2420, Document 161, 03/03/2020, 2791520, Page56 of 71
51
VI. (1940)
wa tch
American
here
Case 19-2420, Document 161, 03/03/2020, 2791520, Page57 of 71
52
Case 19-2420, Document 161, 03/03/2020, 2791520, Page58 of 71
53
307
little natives sing and play
Case 19-2420, Document 161, 03/03/2020, 2791520, Page59 of 71
54
VII. (1940)
sing and play
Case 19-2420, Document 161, 03/03/2020, 2791520, Page60 of 71
55
VIII. (194 1) escape
Case 19-2420, Document 161, 03/03/2020, 2791520, Page61 of 71
56
v
Case 19-2420, Document 161, 03/03/2020, 2791520, Page62 of 71
57
Uncle Sam's
Territory
615
$8,000,000
Case 19-2420, Document 161, 03/03/2020, 2791520, Page63 of 71
58
IX. (1941 )
America's territory5
5 Former unlncorporated t erritories of the Unit ed States {lnc om plete[e::ditJ
The Corn Islands (1914- 1971): leased for 99 vears under the Bryao_Chamo[[o Treaty However, returned to ~ upon the abrogation of the treaty in 197D.
The Linellland.s. (?-1979~ disputed claim with the I Inlred Kingdom U.S. claim to most of the Islands was ceded to Kiribati upon Its independence In 1979. The U,S. retained Kiogman Reef palmVra Atoll and Jarvis Island Dpaoama Canal Zone{1 903_1979~ sovereignty returned to fan.ilm.a under the TocOiDs _Carler Treaties of 1978. U,S. retained a military base there and control of the canal until December 31, 1999.
The Phlijrnjoe ISlaodS{1898 - 1935), the Commonweakh of!he Ph~ippines{1935-46):grantedfull independence on JulV 4, 1946.
phoeniX Islands{?-1 979~ disputed claim with the United Kingdom. U.s. claim ceded to Kiribati upon its Independence In 1979. Baker Island and I::I.oW.I.anJ:l l&LanI:I, Which could beconsldered part of this group, are retained by the U.S Ouita Suei'io Bank {1869-198 1 ~ claimed under Guano Islands Act Claim abandoned on September 7, 1981, by treaty.
Roncador Rank {18S6- 1 98 1 ~ claimed under Guano Islands Act Ceded to Colombia on September 7, 1981, by treaty.
Serraoa Rank {1 874?- 1981~ claimed under Guano Islands Act Ceded to Colombia on September 7, 1981, by treaty.
Swan Islands{1863- 1972t claimed under Guano Islands Act Ceded to Honduras In 1972, by treaty
Former unlncorporated t erritories of the United States under military government[e..d.il]
E Puerto Rico {April 11, 1899-May 1, 1 900~ civil government operations began
:JII philippines (August 14, 1898tuJ-July 4, 190 1 ~ cilill government operations began
aGu.am{Aprill1, 1899- July 1, 1 9S0~ civil government operations began
Areas fo rmerly administered by the United State!i(.e!!ill
This list is jncomplete' you can help by .e.manaioglt. Ec.u..ba{AprW 11, 1899- May 20, 1 902~ sovereignty recognized as the Independent Republic of Cuba.
:JII.PhiJjppJ.n.es.{August 14, 1898- July 4, 1 946~ sovereignty recognized as the Republic of the Philippines
m 'lerac:ruz: occ"pled h" the Ilnlted Slates from April 21, 1914 to November 23, 1914, consequential to the Tampico Affair following the Mexican Reyoh,tion of 1910- 1929
al:lai1i; occupied by the United States from 1915 to 1934 and later under the authority of the UD.i1e.l1. i'la1inn.s from 1999 to the 2000s. :-:: Dominican Repub~c occupied by the United States from 1916 to 1924 and again from 1965 to 1966.
{$8,000,000)
. TOIst Teaitor" of lbe pacific Islands{1947- 1986~ liberated in World War II Included the 'ldImpact. of Free Association" natlons{the Republic o(tbe Marsballisiands, the Federaled Stales pf Mlcrpnesia and the Republic of Pala'l) and the Cpmmpnwealtb pI lhe.liorthern Mariana.l£!.aruts.
• RII, Ikyu IslaMs Including Okina.w.a (U.S. occupation: 19S2- 1972, after Work! War 1ft returned towan under the Agreement 8etween the United States of America and Japan concerning the Ryukyu Islands and the Daltplslands lMl
• Nanpo Islands {194S-1968~ Occupied after WpddWar II Returned to Japanese control by mutual agreement
• MaruI.s.lsland. {or Minamitorishlma){194S-1968~ Occupied during wpdd War II returned to Japan by mutual agreement
m Falkland Islands{, 83 1- 1832~ 8rief landing party and t.i!iQ by the ~ warship ~ I.U.i.D.Qlm Now administered as a British OyerseasTerrito'Y by the United Kingdom and claimed by AuantiJla.
Other zonel~
United States occupation of ~ {1941- 194S'f<l!.
United States occupation of Iceland d'iring Work! War'
(194 1 - 1 946~WI retained a military base until 2006
American Occupation Zones In Allied-Mc'lpled Al.ill.!:@.and~{194S-19SS)
American Occupation Zone in WtlU!eLlin (194S- 1990)
American Occupation Zones of the Allied DCCllpatlpn Zones in Germany (194S- 1949)
Allied Military Gpyernment {pr Occllpied Territpries In full force In Allied - contrOlled sections of Italy from Inyaslon of SleW" In July 1943 until the armistice with Italy In September 1943. AMGOT continued In newly liberated areas of Italy until the end of Wpdd War II Also existed In combat zones of Allied nations such
" """-" Free Territory of Trieste {1947- 19S4)The U.S. co administered a portion of the Free Territory between the Kingdom pI Ita I" and the former Kingdpm of
:D.lQlWaria after Wodd War II along with the United Kingdom
Occupatjon of lapan (1945- 1952) after Wodd War II.
U.s. participation In the Pcc'lnatlpn olthe Rhineland (Germany) (1918- 1921)
South Korea (U.s. occupation of the south of the 3J!1b.. parallel nprth In KP.re.a In 1945- 1948). The region Is slightly different from the current practical boundary of the Repllblic of Korea (South Korea) since the t..e.aSe=.
tire. of the Kprean W;u See also Diyislon of Kprea.
Cpalitipn provlslpnal Authprity 1raQ{2003- 2004)
Green zone m {March 20, 2003 - December 31, 2008):.<11
Clippmnn Island {1 944-1945~ occupied territory: returned to Era!We. on October 23, 1945.
Gr..ena.da Invasion and occupation (1983)
Case 19-2420, Document 161, 03/03/2020, 2791520, Page64 of 71
59
X. (1941 )
the natives have lost
all
knowledge
6 The following IISI of U.s. colonial possessions includes territory that the! lolled Stales has from time to time In Its history had under itscontrolln a fashion similar to a c..o.Jnnial possession,lgnoring areas that ha~e now become IJ.SJtalEts. and those areas that due to warfare were held ur'lder temporary U.S.1'IlIIl1a.l¥ commal'ld
Contents
"""" ,... 3Noab America
"""""" .5Soutb Am~;J
Afrlca[.edi1]
Ll.be.d.a {1821- 47) - Liberia was ne~er officlallv claimed bV the United States, Rather it was founded bV the Amerlr;ao Colonization Society. a prill ate
American cillilian organization
Asla(editj
::lIIIIpbjlippines (1898- 1946) . """" Nanpo islands{1945- 68) Mare"S 'sland (1945- 68) ~ ~{1950-72)
Amaro! IslandS (1950- 53)
North AmericaUtdit]
Ep •• erto Rico{189B- present)
E~{1899- 1902)
=-Swan IslandS (1863- 1972)
~F!a.D;una (1989- 90) Dpaoama Canal Zone {1903- 79)
~~ . '. R/.Q..Ri.c.o. Tama'llipas {1906- 77) _ m~{1914)
=ttkaulgw {1912 - 1933f'1 Corn Islands{1914 71)
United Stales Virgin Islands (1916- present)
Qomlnlcan Republic {1916- 24, 1965- 66)
1:Lai1I{1915- 34)
(k nowledge is power) (have the natives lost a ll power?6
power to the people)
Oceanla[~
C American Samoa (1899- present) .. ~ :::I: Freoch pnlvnesla ~{1813-32) -The~
claimed it as part of the United States, but U,s. Congress ne~er ratified claims.
_~{1898- presentl
a KJ.ri.b.lli Canton and Enderbyrv Islands{1938- 79) line Islands{?- 1979) Nikymaroro (1856- 1979) ptlOeniK Islands (?- 1979)
_ Trust Territory of the PaCific Islands{1947- 94) I!:iMarshal Islands {1944- 86) (1986- present as an associated Slate) III Palau. (1947 - 94) {1994- present as an as$ocla!ed $ta!M a Federated StaleS of Micronesia (1947- 86) {1986- present as an assoclaled $lale) _ Northern Mariana Islands (1975- present)
"Cook Islands ("NeW Zealand) fUhaPlOOl (1942- 80) Rakahanga (?- 1980)
South America[e.ditj
-~ nUila Suej'jo Rank (1869- 1981) Roocador Bank (1856- 1981) Somana Rank{? _ 1981)
I I ,"""" • • French Guiana Des dll connMahle{1856_ 1915)
eaUn~HI Kingdom _Falkland Islands (1831- 32)
Case 19-2420, Document 161, 03/03/2020, 2791520, Page65 of 71
60
v
.. .. ~. " " :J.
Case 19-2420, Document 161, 03/03/2020, 2791520, Page66 of 71
61
F acts 201
Vas t Fortunes in Gold Come from Philippine Mines
Girls do piecework
Case 19-2420, Document 161, 03/03/2020, 2791520, Page67 of 71
62
XI. (1942) Pacts:
Vast Fortunes Come from Philippines Mines
Girls (do piecework).
Case 19-2420, Document 161, 03/03/2020, 2791520, Page68 of 71
63
XII. (\9421 absence
presence
abscesS
Case 19-2420, Document 161, 03/03/2020, 2791520, Page69 of 71
64
llhscuec
Case 19-2420, Document 161, 03/03/2020, 2791520, Page70 of 71
65
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 32(a)(5) of the Federal Rules of Appellate Procedure, the
foregoing brief is in 14-Point Times New Roman proportional font and contains
6,671 words and thus is in compliance with the type-volume limitation set forth in
Rule 32(a)(7)(B) of the Federal Rules of Appellate Procedure.
Dated: February 28, 2020 New York, New York
By: /s/ _Jason M. Schultz_____
JASON M. SCHULTZ [email protected] Counsel for Amici Curiae Latipa (née Michelle Dizon) and Việt Lê
Case 19-2420, Document 161, 03/03/2020, 2791520, Page71 of 71